Prop. 8 trial: defenders of gay-marriage ban make their case

In the federal trial on California's Prop. 8, defenders of the voter ban on gay marriage called their first witnesses Monday. Defense lawyers argue that gays and lesbians in California enjoy plenty of political power and do not need extra constitutional protection.

Same-sex marriage supporters block a sign of those who oppose it prior to the start of a trial outside the federal courthouse in San Francisco, California January 11.

Robert Galbraith/Reuters

View Caption

San Francisco — Lawyers defending Proposition 8, California’s ban on gay marriage, brought their first witnesses to the stand Monday to to testify that gays and lesbians enjoy a rising level of political and cultural support in America.

Kenneth Miller, a political science professor at Claremont McKenna College, the first witness for the defense in the federal trial on the constitutionality of Proposition 8, disputed evidence presented by the plaintiffs that gays and lesbians lack significant political clout largely due to discrimination.

Gays and lesbians enjoyed broad support from leading California politicians and celebrities in the campaign against Proposition 8, Mr. Miller said. Groups opposed to the initiative raised about $40 million to defeat the marriage ban at the ballot box, he added. “It's exceptionally rare" for ballot measures on social issues to generate that kind of cash, Miller said.

Political clout and prejudice play an important role in the legal case against Proposition 8. Lawyers for the plaintiffs are attempting to show that sexual orientation should be given “suspect class” status – a legal classification typically reserved for racial and ethnic minorities that carries greater constitutional protections – and therefore afforded greater protection under the law.

But in order to prove “suspect class” status, they have to show two things: that sexual orientation is an immutable trait, like race or ethnicity, and that gays and lesbians are unable to protect their interests via the political process.

Demonstrating prejudice

Just before the plaintiffs rested their case Monday, they introduced more evidence purporting to show that Proposition 8 was driven by animosity toward gays and lesbians. One videotape included a pastor suggesting that legalized gay marriage could lead to polygamy and bestiality.

“This clearly points to the discriminatory motivations and unconstitutionality of the initiative,” said Chad Griffin, board president of the American Foundation for Equal Rights, which is leading the federal court challenge to Proposition 8.

But lawyers defending Proposition 8, who are expected to finish their case this week, have long said that the marriage ban was not motivated by animus but only about protecting traditional marriage.

State supreme courts in California, Iowa, and Connecticut that have allowed gay marriage have already decided that sexual orientation should be considered a suspect class, noted gay-rights activist Paul Hogarth recently in the Huffington Post.

The US Supreme Court, however, has not extended suspect status to sexual orientation, as it has with race and gender, in deciding cases that deal with equal protection under the law.

Is sexual orientation immutable?

“A key legal element of [the plaintiffs’] constitutional claim requires them to prove that sexual orientation is ‘immutable’ (cannot be changed) in order to have the same high level of constitutional protection as for race and gender,” wrote Andrew Pugno, lead counsel for ProtectMarriage.com, the official proponent of Proposition 8, wrote Saturday.

“If the court sides with the plaintiffs on this and establishes a new legal precedent declaring homosexuality to be ‘immutable’ like race and gender, it becomes far more difficult for any state to continue the traditional definition of marriage,” wrote Mr. Pugno in his blog on the case Sunday.

On Friday, one the plaintiffs’ last witnesses, psychology professor Gregory Herek, said studies have shown that 95 percent of gay men and 80 to 90 percent of lesbians believe that personal choice did not determine their sexual orientation.

“Although we see that the vast majority of people are consistent in their [sexual] behavior, their identity, and their attractions, it is the case that there are some who are not,” Professor Herek said.